Korea Bank (Law Firm Squa, Attorneys Kim Jin-jin et al., Counsel for the plaintiff-appellant)

Republic of Korea (Law Firm Apex, Attorneys Han Young-young, Counsel for defendant-appellant)

June 9, 2010

Seoul Central District Court Decision 2008Gahap93051 Decided August 19, 2009

1. The part against the defendant in excess of the amount ordered under the judgment of the court of first instance shall be revoked, and the plaintiff's preliminary claim corresponding to the revoked part shall be dismissed.

The defendant shall pay to the plaintiff 6.92% per annum from March 16, 2006 to September 15, 2006, 7.01% per annum from March 16, 2006 to September 15, 2006, 4.6375% per annum from the next day to September 15, 2008, 4.93438% per annum from the next day to March 15, 2009, and 3.7938% per annum from the next day to August 19, 209, and 20% per annum from the next day to September 15, 2008.

2. The defendant's remaining appeal is dismissed.

3. 1/10 of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant.

1. Purport of claim

Main and Preliminary Claim 1: The defendant shall pay to the plaintiff 5,904,508,769 won with 7.01% per annum from March 16, 2006 to the delivery date of a copy of the application for modification of the purport of the claim of this case, and 20% per annum from the following day to the full payment date.

2. Purport of appeal

The part against the defendant among the part concerning the preliminary claim of the first instance judgment shall be revoked, and the plaintiff's preliminary claim corresponding to the revoked part shall be dismissed.

1. Scope of the judgment of this court;

The plaintiff at the first instance court against the defendant, ① the performance of the loan obligations or the guaranteed obligation under the loan agreement (Evidence No. 2-1, No. 2 of the A), and the letter of undertaking (Evidence No. 1 of the A), ② the damages arising from the non-performance of obligation under the letter of undertaking (Evidence No. 1) by the first preliminary claim, ③ the damages arising from the non-performance of obligation under the second preliminary claim, ③ the court dismissed the primary claim and accepted the first preliminary claim.

Since only the defendant appealed, the object of this Court's trial is limited to the first preliminary claim and the second preliminary claim.

2. Quotation of judgment of the first instance;

This court's reasoning is the same as the entry of the conjunctive claim among the reasons for the judgment of the court of first instance, except for the following additional or amended reasons. Thus, this court's reasoning is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act.

(a) add “A evidence Nos. 8-1, 2, and 27-1 to 8” to the third party ruling of the first instance;

B. On July 15, 2009, the date of the closing of argument in the instant case, “The loan obligations of this case is currently in force as of July 15, 2009,” set forth in Section 11 of the first instance judgment as “the present remaining obligations out of the loan obligations of this case.”

(c)in Part 16, the following shall be added to the decision of the first instance.

The part of the "the defendant's obligation to transfer all of the obligations under the letter of undertaking to the Korea Railroad Corporation" is not a change in the relationship of rights, but a change in the relationship of rights is determined in accordance with the relevant laws and regulations, so it is null and void. It cannot be deemed that the defendant bears the obligation under the letter of undertaking on the condition that the Korea Railroad Corporation succeeds to all the obligations under the letter of undertaking. In addition, even though the Korea Railroad Corporation led to the act of bearing the obligations under the letter of undertaking, it cannot be deemed that the above obligation belongs to the defendant, and it is not impossible for the Korea Railroad Corporation to determine the contents of the relevant laws and regulations as succeeding to all the obligations under the letter of undertaking. Accordingly, the defendant's argument is without merit."

(d) in accordance with paragraph 15 of the judgment of the first instance court, the term “self-convenants” shall be read as “subsidiarys.”

E. The defendant is obligated to pay to the plaintiff ... (b) according to (c) the defendant is obligated to pay to the plaintiff according to (c) the defendant, according to (c) 14 to 22 of the judgment of the court of first instance.

“(3) Therefore, the Defendant, as damages, is obligated to pay to the Plaintiff the amount of USD 3,969,684.53 ($ 3,874,927.62 + USD 94,756.91 which was agreed upon from September 16, 2005 to March 15, 2006) and the damages for delay from March 16, 2006 to USD 3,874,927.62 which was agreed upon by the Defendant’s 20.3% annual interest rate of USD 96.5% from the following day after the date of the conclusion of the first instance trial to June 9, 2010 to the 30.6% annual interest rate of USD 1,896,605,97.3% per annum from the day after the above 20.6% annual interest rate of USD 97.3% per annum, 205% per annum, 36% per annum per annum from the above.36% interest rate per annum

3. Conclusion

Therefore, the plaintiff's preliminary claim is accepted within the above scope of recognition, and the remaining preliminary claim is dismissed as it is without merit. Since the part against the defendant who ordered payment exceeding the above recognized amount among the judgment of the first instance court which partially different conclusions is unfair, it is revoked and the plaintiff's preliminary claim corresponding to the revoked part is dismissed, and the defendant's remaining appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judge Lee Han-ju (Presiding Judge)